When homage might be a short step away from infringement … or not?

If this Kat were to draw up a list of the types of work most likely to be the subject of copyright infringement proceedings, photographs would be quite high if not, in some countries, even at the top of the list. Famous examples include the red London Bus, the portrait of Jimi Hendrix, “Fait d’hiver”, Jeff Koons' “Naked” sculpture based on a photograph… The list goes on. It should be borne in mind that infringement of copyright in a photograph is not so easily upheld by the courts. Such actions can fail because of the lack of originality of the claimant’s photograph, reproduction of non-protectable features in the defendant’s photograph, and also because of the application of defences such as quotation, parody or pastiche. In a nutshell, their outcome often remains uncertain [e.g. here and here]. 

Only a few days ago, news was shared online that energy drink brand Alani Nutrition sued Rise UP and an influencer for copyright infringement and false advertising due to the allegedly unauthorised reproduction of one of its advertising campaigns. In somewhat a potentially similar vein, this Kat came across an interesting post while browsing his Instagram feed. This post showed a visual of the American skateboard brand Supreme, reminding this Kat of a photograph he had already seen.

Gucci's FW2001 campaign

Background

While it's well known that Supreme - like most others in the industry - occasionally draws inspiration from or pays homage to pre-existing designs, the photo in question is reminiscent of Gucci's FW2001 campaign in its Tom Ford era, photographed by Terry Richardson.

This Kat then finds it amusing to try to determine on what basis the Italian brand could sue Supreme, if such a dispute where ever to arise. Importantly, this Kat is unaware of any actual lawsuit or threat thereof.

          

First of all, a brief description of the two photos is required.

The image of the Florence-born fashion house's campaign is that of a shirtless man in profile, wearing medium washed blue jeans against a light background showing. The model is holding in his left hand a belt loop worn over the jeans. The buckle of this dark leather belt is the “Doppia G”. The right pocket of the jeans is embroidered across the height and width of the pocket in the shape of a G. The model's right arm is resting alongside his body, slightly bent at the elbow. His forearm is tattooed. The photo stops at the model's torso and extends to the middle of his thighs.

The Supreme photo also shows a shirtless man holding a belt loop in his left hand against a light background. The belt is red with a repeating “Supreme” mark. The model is wearing very light wash blue denim jeans. Its right pocket has a small star-shaped embroidery with the brand's logo. His forearm is tattooed. The model's right arm rests alongside his body, slightly bent at the elbow. The photo stops at the model's torso and goes down to the middle of his thighs.

Image from Supreme's Instagram account

Thoughts

The most likely ground for a potential claim by Gucci would be copyright.  As usual, before anything else, it must be shown that the subject matter for which copyright protection is claimed is not a mere idea but the original expression thereof. Ideas cannot be protected under copyright law [IPKat on the notion of idea/expression dichotomy]. 

Then, the characteristics that establish the originality of the photograph should be demonstrated. In some jurisdictions, this might also be a procedural requirement [e.g. in France, case law seems to be moving in this direction – here or here]. However, this does not mean that Supreme's photograph is necessarily infringing. It would still have to be shown that the elements characterising the originality of the photograph taken by Terry Richardson have been reproduced in the disputed photograph. 

If we follow Painer's teachings, the model's suggestive pose, the choice to focus on the top part of the jeans and more particularly the waistband, the bright light that accentuates this choice, and the evocative and provocative atmosphere that emanates from it may be all elements that characterise the originality of this photo. It should be remembered that it is irrelevant that there may be differences between the two photos (e.g. the design of the belt, the wash of the denim, the shape of embroidery), as copyright infringement is assessed on the basis of whether the characteristics that give rise to the originality of the allegedly infringing work are reproduced. In other words: the right of reproduction is triggered in instances of non-literal copying too.

Of course, exceptions or limitations to copyright should be considered too. It should be noted that the application of the exception for quotation as defined by the CJEU could be considered here [IPKat on quotation here and here]. The purpose of criticizing or reviewing the Richardson’s photograph might be lacking though. 

A Guccified Kat © GUCCI

As far as parody is concerned, its conditions do not seem to be met here [IPKat on parody here]. The humorous or mocking intention seems absent from Supreme's photography. However parody is not the only exception enshrined to protect third-party freedom of expression. Article 5(3)(k) of Directive 2001/29/EC also refers to the notion of pastiche, which could prove useful as an alternative to parody. Unlike parody, pastiche itself has not been the whole subject of a referral to the CJEU yet. Nevertheless pastiche could notably be defined as “the imitation of the style of a work or an author – “porno chic” style here - without necessarily taking any elements of that work” as explained by AG Szpunar in his conclusions in C‑476/17, Pelham or a medley of pre-existing works [IPKat on parody and pastiche here]. Supreme’s photo could potentially fulfil those conditions. 

In all this, the dividing line between homage and infringement remains thin, and that is why the outcome of photography copyright cases remain doubtful till the very end, and even afterwards.